Spanel v. Cent. Cmty. Coll.

• Decision Date: 14 December 2021
• Docket Number: 8:18CV380
• Parties: LACRITIA SPANEL, Plaintiff, v. CENTRAL COMMUNITY COLLEGE, CHRIS WADDLE, in his individual capacity; GREG SMITH, in his individual capacity; and MATT GOTSCHALL, in their individual capacities; Defendants.
• Court: U.S. District Court — District of Nebraska

LACRITIA SPANEL, Plaintiff, v. CENTRAL COMMUNITY COLLEGE, CHRIS WADDLE, in his individual capacity; GREG SMITH, in his individual capacity; and MATT GOTSCHALL, in their individual capacities; Defendants.

No. 8:18CV380

United States District Court, D. Nebraska

December 14, 2021

MEMORANDUM AND ORDER

Cheryl R. Zwart United States Magistrate Judge

Plaintiff has filed a motion for leave to file a motion to compel out of time, along with her motion to compel. (Filing No. 126). The motion argues Plaintiff is entitled to discovery regarding the legal advice provided and investigative facts collected by Central Community College's (“CCC”) counsel when assisting CCC in responding to Plaintiff's first EEOC charge and the allegations in this lawsuit. Plaintiff states the Good Faith and Faragher-Ellerth defenses within CCC's Answer to the Third Amended Complaint, along with CCC's statement of facts in its summary judgment briefing, impliedly waive any privilege regarding counsel's investigation and advice provided to CCC. (Filing No. 126, at CM/ECF p. 4). For the reasons discussed below, the motion will be denied.

FACTUAL STATEMENT

As outlined in the Plaintiff's 62-page Third Amended Complaint, (Filing No. 56), Plaintiff alleges Defendants subjected her to ongoing discrimination, harassment, and retaliation from early 2016 to the date she filed her Third Amended Complaint, August 26, 2020. She filed her EEOC Charge on March 24, 2017 and this lawsuit was filed on August 10, 2018. In their Answer to the Third Amended Complaint, Defendants allege:

Plaintiff's claims are barred, in whole or in part because Defendants had policies in place prohibiting discrimination, harassment, and other alleged wrongful conduct during Plaintiff's tenure. Defendants distributed and/or made these policies available to Plaintiff, and Plaintiff unreasonably failed to avail herself of the protections of these policies or to otherwise avoid harm.

Defendants have made good faith efforts to prevent discrimination in the workplace and cannot be liable for decisions of their agents, if any, or for punitive damages to the extent the challenged employment decisions were contrary to their good faith efforts to comply with anti-discrimination statutes.

(Filing No. 75, at CM/ECF p. 32, ¶¶ 6-7).

Defendants have now moved for summary judgment. (Filing No. 116). In their statement of undisputed facts, Defendants state:

In March 2017, Plaintiff filed an EEOC charge of discrimination. . . . In response, CCC retained counsel participated in the EEOC investigation, and attended pre-litigation mediation with Spanel. . . . Plaintiff never supplemented or amended her administrative filing. . . . Plaintiff received her Notice of Right to Sue from the EEOC on March 26, 2018.

(Filing No. 117, at CM/ECF p. 13, ¶ 41).

Defendants' brief argues:

[T]he contention that the CCC Board deliberately ignored and undertook no action in response to Spanel's EEOC charge and civil litigation is untenable. To the contrary, CCC retained counsel, participated in the EEOC investigation, and attended pre-litigation mediation with Spanel. . . . CCC also retained litigation counsel, and it answered Plaintiff's Second and Third Amended Complaints, admitting those facts that were accurate and denying those allegations that were false. CCC has undertaken extensive investigation and discovery throughout the three-year life of this case, and as demonstrated herein, that discovery and investigation have confirmed that Plaintiff's unsupported claims are meritless, if not outright fabricated.

(Filing No. 117, at CM/ECF p. 46).

Plaintiff argues these two paragraphs alerted her to Defendants' intent to rely on legal advice and investigation results received from their attorneys in asserting a good faith and Faragher-Ellerth affirmative defense.^[1] Plaintiff claims these paragraphs thereby waived Defendants' right to the confidentiality afforded under the attorney-client privilege and work product doctrine. She seeks the right to reopen discovery to learn what defense counsel said and the documents they provided to the defendants after the EEOC charge was filed in March of 2017.

ANALYSIS

The parties appear to agree that absent any waiver, the information Plaintiff seeks is protected by the attorney-client privilege or work product doctrine. They disagree on whether the affirmative defenses alleged and the citations in Defendants' brief implicitly waive these protections from disclosure.

The attorney-client privilege may also be implicitly waived by raising attorney advice as a defense to a claim. A party cannot selectively assert the privilege to block the introduction of information harmful to its case after introducing other aspects of its conversations with counsel for its own benefit. “The attorney client privilege cannot be used as both a shield and a sword, ” and a defendant cannot claim it relied on counsel's advice without permitting the opposing party to explore the substance of that advice. U.S. v. Workman, 138 F.3d 1261, 1263-64 (8th Cir. 1998).

Plaintiff argues that Defendants cannot be allowed to argue that “they retained counsel who performed an[] investigation who allegedly determined Plaintiff's claims were meritless, ” while at the same time preventing Plaintiff from discovering the contents of counsel's investigation and communications.

Allowing Defendants to rely on CCC's counsel's investigations and advice as a means to defend their case, while simultaneously preventing Plaintiff from discovering the communications created as part of and in furtherance of the investigation, would be patently unfair and effectively hobble Plaintiff's case by allowing Defendants to use those communications as both a sword and a shield-a tactic not allowed.

(Filing No. 127, at CM/ECF p. 17).

Defendants' briefing states that Defendants are not asserting that attorney communications and advice or the results of attorney investigations support their affirmative defenses, (Filing No. 131, at CM/ECF p. 4), and they are not arguing the reasonableness of their responses to either the EEOC charges or this lawsuit to prove any affirmative defense. Id. at CM/ECF p. 6. Citing their Answer to the Third Amended Complaint, Defendants...